Citation Nr: 1024304
Decision Date: 06/29/10 Archive Date: 07/08/10
DOCKET NO. 06-14 390 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for chronic fatigue
syndrome, to include as a qualifying chronic disability under
38 C.F.R. § 3.317.
2. Entitlement to service connection for tinea pedis, to
include as a qualifying chronic disability under 38 C.F.R. §
3.317.
3. Entitlement to service connection for chest and
cardiovascular symptoms, to include as a qualifying chronic
disability under 38 C.F.R. § 3.317.
4. Entitlement to service connection for bronchitis and
pharyngitis (claimed as ear, nose, and throat problems), to
include as a qualifying chronic disability under 38 C.F.R. §
3.317.
5. Entitlement to service connection for headaches, to
include as a qualifying chronic disability under 38 C.F.R. §
3.317.
6. Entitlement to service connection for sensitivity to
bright light, to include as a qualifying chronic disability
under 38 C.F.R. § 3.317.
7. Entitlement to service connection for a dental and gum
disorder, to include as a qualifying chronic disability under
38 C.F.R. § 3.317.
8. Entitlement to an initial compensable disability rating
for the service-connected bilateral hearing loss.
9. Entitlement to an initial compensable disability rating
for the service-connected skin rash with papules, prior to
November 10, 2009.
10. Entitlement to an increased initial evaluation in excess
of 10 percent for the service-connected skin rash with
papules beginning November 10, 2009.
ATTORNEY FOR THE BOARD
C. Bosely, Associate Counsel
INTRODUCTION
The Veteran had active service from February 1983 to June
1993.
This matter originally came before the Board of Veterans'
Appeals (Board) on appeal from a September 2004 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in Nashville, Tennessee.
In January 2009, the Board remanded the issues on appeal to
the RO for additional development. In addition to the issues
current on appeal, the Board also remanded the claims of
service connection for a right hip disorder. Following the
January 2009 Board remand, the RO issued a rating decision
granting service connection for (1) a disability manifested
by mood swings, short term memory loss, and nervousness, (2)
general myalgia and arthralgia of the left knee, (3) general
myalgia and arthralgia of the right knee, (4) general myalgia
and arthralgia of the left hip, (5) general myalgia and
arthralgia of the right hip, and (6) mild spondylotic changes
of L5-S1, and (7) chronic allergies to include allergic
rhinitis. The Veteran did not file a second Notice of
Disagreement (NOD) disagreeing with any disability rating or
effective date assigned. As such, the issues of entitlement
to a higher initial rating or earlier effective date for the
service-connected disorders are not presently before the
Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997)
(explaining that where a claim of service connection is
granted during the pendency of an appeal, a second Notice of
Disagreement must thereafter be timely filed to initiate
appellate review concerning the compensation level or the
effective date assigned for the disability).
Also on appeal is a February 2010 RO rating decision that
increased the evaluation of the service-connected skin rash
with papules from noncompensable to 10 percent effective
November 10, 2009.
FINDINGS OF FACT
1. The Veteran performed active service in the Southwest
Asia theater of operations in support of Operation Desert
Storm.
2. The competent evidence shows that the Veteran is not
diagnosed with chronic fatigue syndrome.
3. The service-connected skin rash with papules is shown to
have caused or aggravated the tinea pedis.
4. The preponderance of the evidence shows that the
currently diagnosed tension headaches are not related to
service or to an incident of service origin, and the
sensitivity to bright light was not manifest during service
and has not been manifest to a degree of 10 percent or more
since service separation.
5. The Veteran has a qualifying chronic disability
manifested by atypical chest pain that cannot be attributed
to any known clinical diagnosis.
6. The Veteran did not experience chronic respiratory
symptoms during service; a respiratory disorder did not
manifest to a compensable degree within one year after
service separation; respiratory symptomatology was not
continuous after service separation; and the record does not
indicate that the Veteran's post-service treatment for
asthma, bronchitis, and pharyngitis is related to any
incident during service.
7. The Veteran's DD 214 shows that he was not provided a
complete dental examination and all appropriate dental
treatment within 90 days prior to his discharge or release,
and there is no evidence showing that he was provided written
notice of the eligibility requirements for VA outpatient
dental treatment at the time of his discharge.
8. The Veteran's service-connected bilateral hearing loss is
shown to have been manifested by a Level I hearing loss for
the left ear and a Level I hearing loss for the right ear in
January 2010.
9. Since the effective for the award of service connection,
the service-connected skin rash with papules is shown to be
productive of a disability picture that more nearly
approximates at least five percent, but less than 20 percent
of the entire body, or at least five percent, but less than
20 percent, of exposed areas affected.
10. Beginning on November 10, 2009, the service-connected
skin rash with papules is not shown to have been manifested
by more than at least five percent, but less than 20 percent
of the entire body, or at least five percent, but less than
20 percent, of exposed areas affected; or intermittent
systemic therapy such as corticosteroids or other
immunosuppressive drugs required for a total duration of less
than six weeks during the past 12-month period.
CONCLUSIONS OF LAW
1. The Veteran does not have a current disability manifested
by chronic fatigue syndrome due to disease or injury that was
incurred in or aggravated by active service, nor may it be
presumed to have been incurred therein. 38 U.S.C.A. §§ 1101,
1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303,
3.304, 3.307, 3.309, 3.317 (2009).
2. The Veteran's disability manifested by tinea pedis is
proximately caused or aggravated by the service-connected
skin rash with papules. 38 U.S.C.A. §§ 1101, 1110, 1131,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310
(2009).
3. The Veteran's disability manifested by atypical chest
pain was incurred in or aggravated by active service or as a
manifestation of an undiagnosed illness that was incurred in
service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317
(2009).
4. The Veteran does not have a current respiratory disorder
manifested by bronchitis and pharyngitis due to disease or
injury that was incurred in or aggravated by active service,
nor may it be presumed to have been incurred therein. 38
U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§
3.102, 3.303, 3.304, 3.307, 3.309, 3.317 (2009).
5. The Veteran does not have a current disability manifested
by tension headaches due to disease or injury that was
incurred in or aggravated by active service, nor may it be
presumed to have been incurred therein. 38 U.S.C.A. §§ 1101,
1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303,
3.304, 3.307, 3.309, 3.317 (2009).
6. The Veteran does not have a current disability manifested
by sensitivity to light due to disease or injury that was
incurred in or aggravated by active service, nor may it be
presumed to have been incurred therein. 38 U.S.C.A. §§ 1101,
1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303,
3.304, 3.317 (2009).
7. The Veteran is eligible for VA outpatient dental
treatment on a one-time completion basis. 38 U.S.C.A. § 1712
(West 2002); 38 C.F.R. §§ 3.381, 17.161 (2009).
8. The criteria for the assignment of an initial compensable
evaluation for the service-connected bilateral hearing loss
are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100
(2009).
9. The criteria for the assignment of an initial 10 percent
evaluation, but not more, for the service-connected skin rash
with papules are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002);
38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic
Code 7806 (2009).
10. The criteria for the assignment of an increased
evaluation in excess of 10 percent for the service-connected
skin rash with papules are not met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.118,
Diagnostic Code 7806 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
Initially, the Board notes that in November 2000, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000), was signed into law. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002).
To implement the provisions of the law, VA promulgated
regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2003). VCAA and its implementing regulations provide that,
upon the submission of a substantially complete application
for benefits, VA has an enhanced duty to notify a claimant of
the information and evidence needed to substantiate a claim,
as well as the duty to notify the claimant what evidence will
be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(b). The VCAA notice requirements of 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
(1) Veteran status; (2) existence of a disability; (3) a
connection between the Veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006).
In the present case, considering the duties imposed by VCAA
and its implementing regulations, the Board finds that all
notification and development action needed to fairly
adjudicate the claims on appeal has been accomplished.
With regard to the claims of service connection, the VCAA
duty to notify was satisfied by a letter sent to the Veteran
in June 2003, which fully addressed what evidence was
required to substantiate the claims and the respective duties
of VA and a claimant in obtaining evidence.
With regard to the claims for a higher initial evaluation,
the appeal arises from disagreement with the initial
evaluation following the grant of service connection for
bilateral hearing loss and skin rash with papules. Courts
have held that once service connection is granted the claim
is substantiated, additional notice is not required, and any
defect in the notice is not prejudicial. See Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v.
Nicholson, 21 Vet. App. 112 (2007).
The RO also sent the Veteran a letter in March 2006 advising
him of the five Dingess elements, to specifically include
that a disability rating and an effective date for the award
of benefits are assigned in cases where service connection is
warranted. See Dingess/Hartman, 19 Vet. App. at 484.
For these reasons, the Board finds that any arguable lack of
full preadjudication notice in this appeal has not, in any
way, prejudiced the Veteran. See Shinseki v. Sanders, ---
U.S. ----, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009).
The Board also finds that there is no indication whatsoever
that any additional action is needed to comply with the duty
to assist the Veteran in connection with the claims herein
decided. First, the Veteran's available service treatment
record (STR) is on file. To the extent the Veteran's entire
STR is not of record, VA's duty to assist is heightened and
includes an obligation to search for other forms of records
that support the claimant's case. Cuevas v. Principi, 3 Vet.
App. 542, 548 (1992); Moore v. Derwinski, 1 Vet. App. 401
(1991). Here, the record shows that the RO made diligent and
extensive efforts to obtain them. See Cuevas v. Principi, 3
Vet. App. 542, 548 (1992); Moore v. Derwinski, 1 Vet. App.
401 (1991). In fact, the RO in September 2009 issued a
Formal Finding of Unavailability of Service Medical Records.
In the Formal Finding, the RO detailed the extensive efforts
that were undertaken to obtain the entire STR, including a
request sent to the Veteran asking that he provide any
records in his possession. The Board points out that the
record currently contains copies of service records provided
by the Veteran.
Accordingly, remanding this case for further attempts to
obtain any outstanding service records would be an
essentially redundant exercise and would result only in
additional delay with no benefit to the Veteran. See Bernard
v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994) (remands which would only
result in unnecessarily imposing additional burdens on VA
with no benefit flowing to the Veteran are to be avoided).
Otherwise, the claims file contains medical records from
those VA and non-VA medical providers that the Veteran
identified as having relevant records. The Veteran (nor his
representative) has not identified, and the file does not
otherwise indicate, that any other VA or non-VA medical
providers have additional pertinent records that should be
obtained before the appeal is adjudicated by the Board.
Second, the Veteran was afforded VA examinations for the
purposes of evaluating the severity of his service-connected
disabilities and to determine whether his claimed disorders
are due to active service. The Board finds that the VA
examinations are adequate because, as shown below, they were
based upon consideration of the Veteran's pertinent medical
history, his lay assertions and current complaints, and
because they describe the claimed disorders, and the service-
connected hearing loss and skin rash with papules in detail
sufficient to allow the Board to make a fully informed
determination. Barr v. Nicholson, 21 Vet. App. 303 (2007)
(citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).
With regard to the service-connected bilateral hearing loss
and skin rash with papules, the Veteran has not asserted, and
the evidence does not show, that his symptoms have increased
in severity since the most recent evaluations in November
2009 and January 2010.
The Board accordingly finds no reason to remand for further
examination.
Finally, the Veteran has been advised of his entitlement to a
hearing before the RO and before the Board in conjunction
with the issues on appeal, but he has not requested such a
hearing.
For these reasons, the Board finds that all necessary facts
have been properly developed in regard to the Veteran's
claim, and no further assistance is required in order to
comply with VA's statutory duty to assist in the development
of evidence necessary to substantiate the claim. See 38
U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board also finds that there was substantial compliance
with the January 2009 Board remand directives. A remand by
the Board confers upon the claimant, as a matter of law, the
right to compliance with the remand order. Stegall v. West,
11 Vet. App. 268 (1998). Nonetheless, it is only substantial
compliance, rather than strict compliance, with the terms of
a remand that is required. See D'Aries v. Peake, 22 Vet.
App. 97, 104-05 (2008) (finding substantial compliance where
an opinion was provided by a neurologist as opposed to an
internal medicine specialist requested by the Board); Dyment
v. West, 13 Vet. App. 141 (1999).
In particular, the Board directed the AMC/RO to contact the
NPRC in an effort to obtain any outstanding portions of the
Veteran's STR. This was accomplished in March 2009. The
NPRC issued a negative reply. Therefore, the RO, as
indicated, issued a Formal Finding of Unavailability of
Service Medical Records in September 2009.
The Board's January 2009 remand also instructed the AMC/RO to
schedule the Veteran for VA examinations to determine the
current severity of his service-connected bilateral hearing
loss and skin rash with papules. As indicated, this was
accomplished in November 2009 and January 2010.
In light of the RO's development, the Board finds that all of
the Board's January 2009 remanded directive have been
substantially complied with and, therefore, no further remand
is necessary. See Stegall v. West, 11 Vet. App. 268 (1998);
D'Aries, 22 Vet. App. at 104-05.
In conclusion, because all duties to notify and assist have
been satisfied, the Board will proceed with consideration of
the merits of the appeal.
II. Analysis
A. Entitlement to Service Connection
The Veteran is contending that service connection is
warranted for chronic fatigue syndrome, tinea pedis, chest
and cardiovascular symptoms, bronchitis and pharyngitis
(claimed as ear, nose, and throat problems), headaches,
sensitivity to bright light, and a dental and gum disorder,
each to include as a qualifying chronic disability under 38
C.F.R. § 3.317.
Service connection may be granted on a direct basis for a
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §
3.303(a). Service connection generally requires credible and
competent evidence showing: (1) the existence of a present
disability; (2) in-service incurrence or aggravation of a
disease or injury; and (3) a causal relationship between the
present disability and the disease or injury incurred or
aggravated during service. See Davidson v. Shinseki, 581
F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet
.App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498
(1995).
Also, certain chronic diseases may be presumed to have been
incurred during service if manifested to a compensable degree
within one year of separation from active service. 38
U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For
the showing of chronic disease in service, there is required
a combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity at the time. If chronicity in service is not
established, a showing of continuity of symptoms after
discharge is required to support the claim. 38 C.F.R. §
3.303(b). Service connection may also be granted for any
disease diagnosed after discharge when all of the evidence
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
Service connection may also be granted for a disability that
is proximately due to or the result of a service-connected
disability, which includes the degree of disability resulting
from aggravation of a nonservice-connected disability by a
service-connected disability. See 38 C.F.R. § 3.310(a);
Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on
the issue of secondary service causation, the record must
show (1) evidence of a current disability, (2) evidence of a
service-connected disability, and (3) medical nexus evidence
establishing a connection between the current disability and
the service-connected disability. Wallin v. West, 11 Vet.
App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-
17 (1995).
In addition, service connection may be established under 38
C.F.R. § 3.317, where a Persian Gulf Veteran exhibits
objective indications of a qualifying chronic disability that
became manifest during active military, naval or air service
in the Southwest Asia theater of operations during the
Persian Gulf War, or to a degree of 10 percent or more not
later than not later than December 31, 2011. See 38 C.F.R. §
3.317(a)(1)). For purposes of 38 C.F.R. § 3.317, there are
three types of qualifying chronic disabilities: (1) an
undiagnosed illness; (2) a medically unexplained chronic
multi-symptom illness; and (3) a diagnosed illness that the
Secretary determines in regulations prescribed under 38
U.S.C.A 1117(d) warrants a presumption of service-connection.
An undiagnosed illness is defined as a condition that by
history, physical examination and laboratory tests cannot be
attributed to a known clinical diagnosis. In the case of
claims based on undiagnosed illness under 38 U.S.C.A. § 1117
and 38 C.F.R. § 3.117, unlike those for "direct service
connection," there is no requirement that there be competent
evidence of a nexus between the claimed illness and service.
Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay
persons are competent to report objective signs of illness.
Id. To determine whether the undiagnosed illness is
manifested to a degree of 10 percent or more the condition
must be rated by analogy to a disease or injury in which the
functions affected, anatomical location or symptomatology are
similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v.
Nicholson, 19 Vet. App. 470 (2006).
A medically unexplained chronic multi symptom illnesses is
one defined by a cluster of signs or symptoms, and
specifically includes chronic fatigue syndrome, fibromyalgia,
and irritable bowel syndrome, as well as any other illness
that the Secretary determines meets the criteria in paragraph
(a)(2)(ii) of this section for a medically unexplained
chronic multi symptom illness.
A "medically unexplained chronic multi symptom illness"
means a diagnosed illness without conclusive pathophysiology
or etiology that is characterized by overlapping symptoms and
signs and has features such as fatigue, pain, disability out
of proportion to physical findings, and inconsistent
demonstration of laboratory abnormalities. Chronic
multisymptom illnesses of partially understood etiology and
pathophysiology will not be considered medically unexplained.
38 C.F.R. § 3.317(a)(2)(ii).
There are currently no diagnosed illnesses that have been
determined by the Secretary to warrant a presumption of
service connection under 38 C.F.R. § 3.317(a)(2)(C). (In
March 2010, VA issued a proposed amendment to 38 C.F.R.
§ 3.317, which would add nine infectious diseases as
warranting presumptive service connection for a Persian Gulf
Veteran. The proposed regulation is not pertinent to the
present Veteran's claim because he is not shown to be
diagnosed with any of the 9 proposed infectious diseases.)
"Objective indications of chronic disability" include both
"signs," in the medical sense of objective evidence
perceptible to an examining physician, and other, non-medical
indicators that are capable of independent verification. 38
C.F.R. § 3.317(a)(3). Signs or symptoms that may be
manifestations of undiagnosed illness or medically
unexplained chronic multi symptom illness include, but are
not limited to, the following: (1) fatigue; (2) signs or
symptoms involving skin; (3) headache; (4) muscle pain; (5)
joint pain; (6) neurologic signs or symptoms; (7)
neuropsychological signs or symptoms; (8) signs or symptoms
involving the respiratory system (upper or lower); (9) sleep
disturbances; (10) gastrointestinal signs or symptoms; (11)
cardiovascular signs or symptoms; (12) abnormal weight loss;
and (13) menstrual disorders. 38 C.F.R. § 3.317(b).
For purposes of § 3.317, disabilities that have existed for
six months or more and disabilities that exhibit intermittent
episodes of improvement and worsening over a six-month period
will be considered chronic. The six-month period of
chronicity will be measured from the earliest date on which
the pertinent evidence establishes that the signs or symptoms
of the disability first became manifest. 38 C.F.R. §
3.317(a)(4).
In making all determinations, the Board must fully consider
the lay assertions of record. A layperson is competent to
report on the onset and continuity of his current
symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470
(1994) (a Veteran is competent to report on that of which he
or she has personal knowledge). Lay evidence can also be
competent and sufficient evidence of a diagnosis or to
establish etiology if (1) the layperson is competent to
identify the medical condition, (2) the layperson is
reporting a contemporaneous medical diagnosis, or (3) lay
testimony describing symptoms at the time supports a later
diagnosis by a medical professional. Davidson v. Shinseki,
581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson,
492 F.3d 1372, 1376-77 (Fed. Cir. 2007).
The Board's duty is to assess the credibility and weight of
the evidence. See Wood v. Derwinski, 1 Vet. App. 190,
193 (1991) (BVA has a duty to assess). Where there is
conflicting medical evidence, the Board may favor one medical
opinion over another if it offers an adequate statement of
reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433
(1995). Although all opinions by a medical professional
constitute medical conclusions that the Board cannot ignore
or disregard, the Board is not obligated to accept any
physician's opinion. See Willis v. Derwinski, 1 Vet. App.
66, 70 (1991); Hayes, 5 Vet. App. at 69. In determining the
probative value to be assigned to a medical opinion, the
Board must consider three factors. See Nieves-Rodriguez v.
Peake, 22 Vet. App. 295 (2008). The initial inquiry in
determining probative value is to assess whether a medical
expert was fully informed of the pertinent factual premises
(i.e., medical history) of the case. A review of the claims
file is not required, since a medical professional can also
become aware of the relevant medical history by having
treated the Veteran for a long period of time or through a
factually accurate medical history reported by the Veteran.
See id. at 303-304.
The second inquiry involves consideration of whether the
medical expert provided a fully articulated opinion. See
id. A medical opinion that is equivocal in nature or
expressed in speculative language does not provide the degree
of certainty required for medical nexus evidence. See
McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The third and final factor in determining the probative value
of an opinion involves consideration of whether an opinion is
supported by a reasoned analysis. The most probative value
of a medical opinion comes from its reasoning. Therefore, a
medical opinion containing only data and conclusions is not
entitled to any weight. In fact, a review of the claims file
does not substitute for a lack of a reasoned analysis. See
Nieves-Rodriguez, 22 Vet. App. at 304. In other words, a
bare conclusion, even one reached by a health care
professional, is not probative without a factual predicate in
the record. See Miller v. West, 11 Vet. App. 345, 348
(1998).
In short, a medical opinion will be considered probative if
it includes clear conclusions and supporting data with a
reasoned analysis connecting the data and conclusions. A
medical opinion that is a factually accurate, fully
articulated, and based on sound reasoning carries significant
weight. See Nieves-Rodriguez, 22 Vet. App. at 304.
If service records are unavailable and presumed to have been
destroyed while in government custody, VA's duty to assist is
heightened and includes an obligation to search for other
forms of records that support the claimant's case. Cuevas v.
Principi, 3 Vet. App. 542, 548 (1992); Moore v. Derwinski, 1
Vet. App. 401 (1991). There is also a heightened obligation
to explain findings and to carefully consider the benefit-of-
the-doubt rule in cases where presumed destroyed while in
custody of the government. O'Hare v. Derwinski, 1 Vet. App.
365, 367 (1991). Where service medical records were
destroyed, the Veteran is competent to report about factual
matters about which he had firsthand knowledge, including
experiencing pain during service, reporting to sick call, and
undergoing treatment. Washington v. Nicholson, 19 Vet. App.
362 (2005).
Here, the record shows that the Veteran served in Southwest
Asia from December 26, 1990 to May 19, 1991. The record also
contains a July 1997 letter from the Secretary of Defense
wrote to the Veteran explaining that the Veteran's unit was
near Khamaisiyah, Iraq, in early March 1991. At that time,
according to the letter, Iraqi weapons containing the nerve
agents sarin and cyclosarin were destroyed, which may have
released the nerve agents into the air. The letter goes on
to explain that the exposure level would have been too low to
cause any symptoms at that time, and long-term health
problems were also unlikely according to current medical
evidence.
Chronic Fatigue
Upon review, the Board finds that the Veteran's claim of
service connection for chronic fatigue syndrome must be
denied because there is no probative evidence diagnosing this
disorder.
In support of his claim, the Veteran wrote in April 2003 that
he has experienced chronic fatigue increasingly since his
Persian Gulf service.
The STR during his period of active service, however,
contains no indication of fatigue. Rather, the first
indication of fatigue occurs in a March 2002 Reserve physical
examination report, where the Veteran endorsed having easy
fatigability.
In an April 2003 treatment note, a private physician noted
that the Veteran had had complaints such as chronic fatigue,
which "would appear to have occurred while" the Veteran was
on active duty/Reserve duty. In an April 2003 letter, the
same physician wrote that the Veteran has had chronic fatigue
since his service in the Persian Gulf during the first Gulf
War. The physician indicated that a work-up was negative, so
a Gulf War syndrome screening was warranted.
The Board finds that the physician's opinion is somewhat
probative, but the probative value is significantly
diminished. First, a careful reading of the physician's
statement shows that he was simply transcribing the Veteran's
report of having chronic fatigue, rather than providing an
independent assessment. See LeShore v. Brown, 8 Vet. App.
406, 409 (1995) (mere transcription of lay history,
unenhanced by any additional medical comment by the
transcriber, does not become competent medical evidence
merely because the transcriber is a medical professional).
Moreover, the private physician's assessment was tentative in
that he indicated only that the Veteran's symptoms "would
appear" to have occurred during the Veteran's active
service. The physician specifically indicated that his
assessment was only an "initial screening," and that
further workup and evaluation was necessary. This type of
equivocal and speculative opinion is of limited probative
value. See Stegman, 3 Vet. App. at 230. In other words, the
private physician's April 2003 assessment does not contain a
probative diagnosis of chronic fatigue syndrome.
In fact, the evidence overall reveals that the Veteran's
complaints of "fatigue" are more accurately related to his
complaints of muscle pain (service-connected as arthralgia
and myalgia), chest pain, and shortness of breath (as
discussed below). For example, during a VA intake evaluation
in April 2004, the Veteran complained of extreme fatigue,
such as getting very tired climbing a flight of stairs.
Similarly during more recent treatment in January 2009, the
Veteran complained of feeling very fatigued, including having
mild shortness of breath when climbing stairs and a feeling
of chest fullness.
The most probative evidence, in this regard, consists of the
assessment of a VA examiner in October 2004. The examiner
reviewed the Veteran's complaints of chronic fatigue since
his Persian Gulf service, but also noted that the Veteran
reported working out at a gym three days a week, 30 minutes
at a time, where he lifted up to 150 pounds of weights. The
Veteran also reported being able to walk long distances on
flat ground, up to five miles, and drive long distances.
Otherwise, the Veteran denied fever, chills, tenderness of
lymph nodes, sleep problems, weight loss or gain, and post-
exertional fatigue lasting more than 24 hours. In light of
these considerations, the VA examiner diagnosed general
myalgia and arthralgia, but opined unequivocally that chronic
fatigue syndrome is "not at all to [be] entertained[ed]" in
the Veteran's case.
The Board finds the October 2004 VA examiner's assessment
highly probative because the examiner thoroughly reviewed the
factual circumstances of the case, including the Veteran's
service history and current complaints. The examiner also
provided a clear and unequivocal opinion relating the
Veteran's complaints to general myalgia and arthralgia, and
unequivocally ruling out chronic fatigue syndrome. See
Nieves-Rodriguez, 22 Vet. App. at 304.
In summary, the probative evidence establishes that the
Veteran does not have a disorder manifested by chronic
fatigue syndrome. Accordingly, service connection on a
presumptive basis under 38 C.F.R. § 3.317 is not warranted.
Also, without evidence of current disability, service
connection on a direct basis must be denied. See Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992); McClain v.
Nicholson, 21 Vet. App. 319, 321 (2007). In reaching this
conclusion the Board has considered the applicability of the
benefit-of-the-doubt doctrine. However, as the preponderance
of the evidence is against the claim, that doctrine is not
applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102;
Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
Tinea Pedis
In April 2003, the Veteran wrote that he has had had
rashes/foot problems, increasingly after his service in the
Persian Gulf.
At service discharge in June 1993, the Veteran denied any
foot trouble. He indicated that he did not know if he had
skin disease, and clinical evaluation of the feet was normal.
It was noted that he had skin staining on his arms and back,
and this was noted as skin stains from oil. Several years
later, during a March 2002 Reserve physical examination, the
Veteran endorsed a history of foot trouble. The assessment
was blister on the foot.
Subsequent treatment records, including an April 2004 VA
consultation report, confirm a diagnosis of athlete's foot.
The Veteran underwent a VA examination in October 2004. The
VA examiner indicated that the Veteran's service-connected
rash had contributed to his athlete's foot problem with
blister. The Veteran reported that a prescription of Lamisil
from his doctor had resolved the problem.
The October 2004 VA examiner then noted his diagnosis as
"tinea pedis, resolving, is not a service connected
problem." The VA examiner's assessment supports a
conclusion that service connection is not warranted on a
direct basis. The October 2004 VA examiner, however, clearly
attributed the Veteran's tinea pedis to his service-connected
skin rash with papules. To the extent the Veteran reported
to the April 2004 VA examiner that medication had resolved
the problem, the disability was diagnosed during the pendency
of the appeal. Accordingly, service connection is warranted
on a secondary basis. 38 C.F.R. § 3.310; Brammer, 3 Vet.
App. at 225; McClain, 21 Vet. App. at 321. With regard to
whether the disorder is currently symptomatic, this is a
question concerning the degree of disability, which must be
addressed when assigning an initial disability rating.
Chest/Cardiovascular
The Board finds that by extending the Veteran the benefit of
the doubt, service connection is warranted for a disability
manifested by atypical chest pain.
In his April 2003 claim, the Veteran wrote that he was
seeking service connection for "chest and cardiovascular
signs and symptoms." In light of his very broad description
of his claim, the Board will consider the scope of the claim
to include any disorder related to the chest, heart, or
vascular system. See Clemons v. Shinseki, 23 Vet. App. 1
(2009).
The Veteran's STRs include an April 1997 report of physical
examination and history showing that the Veteran complained
of pain or chest pressure with no problems now. A chest X-
ray was normal. Then, at service separation in June 1993,
the Veteran again complained of upper left chest pains, which
were noted as angina, for 5 to 6 years. An EKG was ordered,
but the Veteran did not undergo the testing. His blood
pressure at discharge was 139/76.
Following his active service, the STR contains Reserve
examinations from April 1997 and March 2002 showing that the
Veteran denied heart trouble, high/low blood pressure, pain
or pressure in chest, and palpitation or pounding heart.
In September 1993, however, the Veteran underwent a VA
examination during which he complained of chest pain in the
left axillary line off-and-on for the past 5 years, mainly on
awakening in the morning, then lasting 3 to 4 hours. He took
no medication, and he denied any associated diaphoreses,
shortness of breath, weakness, or dizziness. The Veteran
indicated that he was under a lot of stress after returning
from Persian Gulf, due to a divorce. His current complaint
was occasional chest pain. On physical examination, the VA
examiner found that the cardiovascular system was "normal";
the Veteran's blood pressure was 128/86. The diagnosis was
musculoskeletal chest pain.
In connection with his present claim, the Veteran underwent
VA heart examination in October 2004. During the
examination, the Veteran complained of palpitations six
months prior. He went to a private emergency room (ER), but
an EKG and chest X-ray were normal. He had no recurrence.
He otherwise complained of chest pain since 1993, which he
described as a feeling of tightness that occurred every two
weeks for 12 hours duration. It resolved by itself. The
Veteran also reported that he had been diagnosed with muscle
spasm, but had been pain free for six months. He denied
syncope or dizziness and angina with pressure of the heart.
He denied current palpitations and a history of myocardial
infarction (MI), hypertension, syphilitic heart disease, or
valvular heart disease. The VA examiner reported that an EKG
showed normal sinus rhythm; chest X-ray was normal. ETT
showed normal test; exercise treadmill was pending. Based on
the examination results, the VA examiner diagnosed chest
pain, most likely chest wall pain, which had resolved;
history of palpitations, which had resolved.
The Veteran subsequently underwent extensive testing
associated with his complaints of chest pain. A VA stress
test in October 2004 was "normal." More recently, he
underwent further testing after complaining to his private
treating physician of chest pain. Extensive testing in
January 2009 resulted in an assessment of atypical chest
discomfort; hypertension; hyperlipidemia; dyspnea on
exertion; and dizziness. His treating physician in January
2009 clarified that the assessment was unspecified chest
pain, resolved, with all cardiac work-up negative.
In summary, the evidence shows that the Veteran is currently
diagnosed with atypical chest pain, which has not been
attributed to a known clinical diagnosis. To the contrary,
the extensive and repeated cardiological testing has been
negative. The Board points out that atypical chest pain is a
musculoskeletal disorder. See Merck, The Merck Manual for
Healthcare Professionals, Cardiovascular Disorders, Table 6,
(Online Ed.),
http://www.merck.com/mmpe/sec07/ch069/ch069b.html.
Accordingly, this diagnosis is consistent with the previously
service-connected disabilities of general myalgia and
arthralgia of the left knee, right knee, left hip, and right
hip, which a VA examiner in October 2004 opined was difficult
to attribute to any known clinical diagnosis. The disorder
has also been manifest to a degree of at least 10 percent
under the analogous provisions of 38 C.F.R. § 4.73,
Diagnostic Code 5399-5321. For these reasons, the Board
finds that service connection for a chronic undiagnosed
illness manifested by atypical chest pain is warranted.
Bronchitis/Pharyngitis
The Veteran is also contending that service connection is
warranted for a respiratory disorder manifested by bronchitis
and pharyngitis. The Board points out that the Veteran is
currently service-connected for chronic allergies to include
allergic rhinitis. Accordingly, the scope of his claim
excludes this disability.
Upon review of the record, the Board finds that the weight of
the evidence is against the Veteran's claim.
As an initial matter, the Board points out that during an
April 2004 VA outpatient consultation, the Veteran reported
having a history of childhood asthma that he outgrew. A
Veteran is presumed to have been sound upon entry into active
service, except as to defects, infirmities, or disorders
noted at the time of the acceptance, examination, or
enrollment, or where clear and unmistakable evidence
demonstrates that the condition existed before acceptance and
enrollment and was not aggravated by such service. 38
U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).
Here, the Veteran's service treatment record (STR) shows that
clinical evaluation of the lungs and chest was "normal"
upon service entrance in December 1982. In other words, a
respiratory disorder is not "noted" as service entrance.
Therefore, the Veteran is entitled to the presumption of
sound condition. The record also does not contain clear and
unmistakable evidence showing that a respiratory disorder
preexisted service. The Veteran's current assertions of
having childhood asthma do not constitute clear and
unmistakable evidence. See Paulson v. Brown, 7 Vet. App. 466
(1995). Accordingly, the evidence is not sufficient to rebut
the presumption of soundness. See 38 U.S.C.A. § 1111;
38 C.F.R. § 3.304; Wagner v. Principi, 370 F.3d 1089, 1096
(Fed. Cir. 2004).
With regard to whether he has a current respiratory disorder
that was incurred during active service, the Veteran reported
during a post-service VA examination in October 2004 that he
was treated during service for acute bronchitis, which
resolved completely. His assertions are competent evidence
showing treatment for acute bronchitis during service. See
Washington, 19 Vet. App. 362. Also, consistent with his
assertion, the STR shows that he completed a questionnaire in
June 1987 in which he endorsed having a "lung condition";
no explanation is provided.
At service separation in June 1993, the Veteran denied all
respiratory symptoms, including shortness of breath and
chronic cough. Also, clinical evaluation of the lungs and
chest was "normal," and a chest X-ray showed lungs within
normal limits.
In summary, the evidence indicates that the Veteran was
treated for acute bronchitis during service, but the service
separation examination was normal, and there is otherwise no
indication that any respiratory disorder such as bronchitis
was chronic during service.
Following his June 1993 service separation, the Veteran
underwent a VA Persian Gulf registry examination in June
1994, during which he complained of cough and shortness of
breath on exertion. Physical examination and a chest X-ray,
however, were "normal."
Subsequently, the Veteran underwent another chest X-ray in
April 1997 (which is contained in the STR), showing that the
lungs were within normal limits. Also in the STR, the
Veteran underwent a Reserve physical examination in March
2002, during which he complained of having shortness of
breath after stopping smoking.
The Veteran also underwent a VA outpatient consultation in
April 2004. In addition to reporting a history of childhood
asthma, as indicated, he had current complaints of occasional
wheezing. On the other hand, he denied chronic cough or
coughing up blood, and he otherwise denied a history of
asthma, bronchitis, emphysema, recent pneumonia, pleurisy, or
asbestos exposure. Physical examination showed no wheezing,
rhonchi, or rales. The assessment was asthma with pulmonary
and allergy work-up recommended.
The Veteran then underwent, as indicated, a VA examination in
October 2004, during which he complained of having been
treated during service for acute bronchitis, which resolved
completely. On physical examination during the VA
examination, the Veteran's throat was "normal," and his
chest was clear to auscultation bilaterally, without
wheezing, rales, or adventitious sounds. The examiner noted
that the Veteran's ear, nose, and throat problem is related
to allergies, which the Board points out, is a currently
service-connected disability.
In August 2006, the Veteran sought non-VA emergency care in
August 2006 for complaints of chest congestion, cough, left-
side sore throat. The assessment was bronchitis with broncho
spasm/asthmatic, and pharyngitis, acute.
Most recently, in August 2008, the Veteran underwent a
physical examination for purposes of obtaining a commercial
driver's license. He denied having any respiratory disorder
or symptoms, including shortness of breath, asthma, and
chronic bronchitis.
In summary, the post-service records show that the Veteran
intermittently endorsed respiratory symptoms, but all
physical examinations and chest X-rays were normal. He
underwent treatment in August 2006 for symptoms related to
bronchitis with broncho spasm/asthmatic, and pharyngitis,
acute, but in August 2008, he denied having any respiratory
disorder or symptoms and physical examination revealed no
abnormality. In other words, the medical evidence provides
no indication of a chronic respiratory disorder since service
and there is no evidence indicating that the bronchitis and
acute pharyngitis diagnosed in August 2006 is etiologically
related to the Veteran's service. Also, as his symptoms have
been attributed to known clinical diagnoses, asthma,
bronchitis, and pharyngitis, service connection for an
undiagnosed illness due to service in the Persian Gulf is not
warranted for his respiratory symptoms. See 38 U.S.C.A. §
1117; 38 C.F.R. § 3.317(a)(1).
To the extent the Veteran has intermittently endorsed a
history of continuous symptoms since service, these
assertions were made in the context of his current claim.
For instance, in an April 2003 statement submitted in support
of his claim, he wrote that he had experienced chest signs
and symptoms increasingly since his service. Otherwise, he
has denied a history of chronic symptoms, as indicated most
recently in his August 2008 examination. This inconsistently
reduces the reliability and, therefore, the probative value
of his assertions regarding a continuity of symptomatology.
See Wood, 1 Vet. App. at 193; Caluza, 7 Vet. App. at 511.
For these reasons, the Board finds that the weight of the
competent evidence is against the claim. Therefore, the
claim must be denied. In reaching this conclusion the Board
has considered the applicability of the benefit-of-the-doubt
doctrine. However, as the preponderance of the evidence is
against the claim, that doctrine is not applicable. See
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v.
Derwinski, 1 Vet. App. 49, 53-56 (1990).
Headaches and Sensitivity to Bright Light
Upon review, the Board finds that the weight of the evidence
is against the Veteran claim of service connection for
headaches and sensitivity to bright light.
In his April 2003 claim, the Veteran wrote that he has
increasingly had headaches and sensitivity to bright light
since his Gulf War service. His STR includes a March 1990
Health Questionnaire for Dental treatment showing that the
Veteran reported having frequent headaches. The Board points
out that this was prior to his Persian Gulf War service.
At service separation in June 1993, the Veteran denied
headaches and eye problems. Plus, a clinical neurological
evaluation was "normal." The Veteran then denied headaches
at subsequent Reserve service examinations in April 1997 and
March 2002. Although he endorsed having "Sensitivity to
chemicals, dust, sunlight, etc" during a March 2002
examination, he specified that he was referring to "seasonal
rhinitis." He did not otherwise directly endorse sensitivity
to bright light in March 2002. In fact, he specifically
endorsed having "no" eye trouble.
Similarly, the Veteran underwent a VA Persian Gulf War
screening in June 1994, during which he denied eye pain and
headaches.
In short, the Veteran is shown to have denied symptoms of
headaches and sensitivity to light at service separation and
for several years thereafter. This evidence constitutes
affirmative evidence weighing against a claim of service
connection as it demonstrates no objective indications
manifest during service. See 38 C.F.R. § 3.317; See also,
e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1337
(Fed.Cir.2006); McLendon v. Nicholson, 20 Vet. App. 79, 83
(2006) (distinguishing the absence of evidence from actual
substantive negative evidence).
The next pertinent evidence consists of an April 2003
evaluation by the Veteran's private treating physician. The
Board points out that the Veteran described multiple symptoms
to his physician, which the Veteran attributed his Gulf War
service, but he did not include headaches or sensitivity to
bright light.
In April 2004, the Veteran presented at VA for an evaluation
during which he complained of having severe headache
involving a sharp pain in the right side of the face that did
not last long (with a normal MRI). On physical examination,
neurologic evaluation showed intact cranial nerves.
Then, during an October 2004 VA general examination the
Veteran reported having headaches since 1992. He described
headaches every two weeks without nausea, vomiting, or aura.
He indicated that the headaches were flare-ups from tension
at work, and they lasted from three hours to three days. The
Veteran also complained of sensitivity to bright light
connected to his headaches or provoked independently. He
used sunglasses or went into a dark room for relief.
Physical examination of the eyes revealed very small pupils,
2 mm, which were equal, round, and reactive to light and
accommodations. Neurologic examination was likewise normal.
Based on these examination results, the VA examiner diagnosed
tension headaches secondary to job-related condition and
sensitivity to bright light not related to service-connected
injury.
In summary, the medical evidence shows that the Veteran has
been diagnosed with tension headaches, which is a known
clinical diagnosis. Accordingly, service connection on a
presumptive basis as due to active service in the Persian
Gulf War is not warranted. See 38 C.F.R. § 3.317(c)(2).
Moreover, service connection is not warranted on a direct
basis because the Veteran's tension headaches have been
attributed by competent evidence to job-related tension.
With regard to the sensitivity to bright light, there is no
objective evidence indicating that the Veteran has a disorder
manifested by sensitivity to bright light that is
etiologically related to his service, to include as a
symptoms of an undiagnosed illness. The October 2004 VA
examiner determined that this disorder is not related to the
Veteran's headaches. Plus, the disorder would be rated by
analogy to 38 C.F.R. § 4.79, Diagnostic Code 6000, which
provides that a 10 percent evaluation is assigned for
incapacitating episodes having a total duration of at least 1
week, but less than 2 weeks, during the past 12 months. The
Veteran, however, has not indicated that he experiences
incapacitating episodes as a result of the sensitivity to
bright light. Accordingly, the disorder is not manifest to a
degree of 10 percent or more. For this reason, service
connection under 38 C.F.R. § 3.317 is not warranted.
In this regard, the Veteran is competent to report that he
has had headaches and sensitivity to light since active
service in the Persian Gulf. See Davidson, 581 F.3d at 1316;
Jandreau, 492 F.3d at 1376-77. The Board finds, however,
that his assertions are without probative value in light of
the evidence showing that he consistently denied headaches
and eye symptoms from the time of service separation until
2003. These inconsistent and contradictory assertions
establish that his current assertions are not probative
evidence supporting his claim. See Wood v. Derwinski, 1 Vet.
App. 190, 193 (1991) (BVA has a duty to assess the
credibility and weight of the evidence); Caluza v. Brown, 7
Vet. App. 498, 511 (1995) (in weighing credibility, VA may
consider interest, bias, inconsistent statements, bad
character, internal inconsistency, facial plausibility, self
interest, consistency with other evidence of record,
malingering, desire for monetary gain, and demeanor of the
witness).
For these reasons, service connection must be denied for
headaches and sensitivity to bright light. In reaching this
conclusion the Board has considered the applicability of the
benefit-of-the-doubt doctrine. However, as the preponderance
of the evidence is against the claim, that doctrine is not
applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102;
Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
Dental
In April 2003, the Veteran wrote that he has had dental
problems increasingly since his Persian Gulf War service.
The Board points out that a claim of service connection
includes a claim for VA outpatient dental treatment. See Mays
v. Brown, 5 Vet. App. 302, 306 (1993).
The Veteran's STR includes the Veteran's December 1982
service entrance examination showing no indication of tooth
or gum disease. An April 1985 dental examination showed that
he had cavities on numbers 2, 3, and 14, plus chronic
generalized gingivitis, but no missing teeth. He
subsequently underwent extensive treatment, and a dental
treatment record from April 20 1992, which was shortly before
his service separation, shows that his upper right gums were
infected. Also, tooth number 1 was carious, and teeth
numbered 16, 32, 30, and 19 were missing. Although not
clear, the dental treatment records indicate that these teeth
were extracted. The Board also point out that the Veteran
has not asserted that he sustained dental trauma while on
active duty.
The post-service evidence does not show treatment or
complaints for a dental disorder. Nonetheless, the STR show
that the Veteran underwent treatment for periodontitis, which
is a diagnosed disability and not an illness that the
Secretary has determined warrants presumptive service
connection. Therefore, service connection for under 38
U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not permitted as a
matter of law. As such, the Board must consider whether
service connection may be granted on another basis.
Disability compensation may be provided for certain specified
types of service-connected dental disorders (Class I). See
38 C.F.R. § 17.161(a). There is no time limitation for making
application for treatment and no restriction as to the number
of repeat episodes of treatment. The types of dental
disorders that may be compensable include irreplaceable
missing teeth and disease or damage to the jaw. 38 C.F.R. §
4.150, Diagnostic Codes 9900-9916. Missing teeth may be
compensable for rating purposes under Diagnostic Code 9913
("loss of teeth, due to loss of substance of body of maxilla
or mandible without loss of continuity"). However, the Note
immediately following states, "these ratings apply only to
bone loss through trauma or disease such as osteomyelitis,
and not to the loss of the alveolar process as a result of
periodontal disease, since such loss is not considered
disabling." 38 C.F.R. § 4.150, Diagnostic Code 9913. There
is no competent evidence that the Veteran has irreplaceable
missing teeth or that his loss of teeth is the result of loss
of substance of body of maxilla or mandible. There is no
evidence indicating, nor does the Veteran contend, that he
suffered injury or disease of the jaw during service, or any
of the other conditions listed as compensable dental and oral
conditions under the rating schedule. See 38 C.F.R. § 4.150.
Therefore, he is not eligible for compensation or Class I
treatment for any dental disorder.
Other types of service-connected dental disorders qualify a
Veteran to receive treatment only, and not compensation. See
38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. For
those Veterans who have a service-connected, noncompensable
dental condition or disability adjudicated as resulting from
combat wounds or service trauma (Class II(a)) any treatment
may be authorized if indicated as reasonably necessary for
the correction of such service-connected noncompensable
condition or disability. See 38 C.F.R. § 17.161(c); see also
VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997) (to have had
dental extractions during service is not tantamount to dental
trauma, because trauma of teeth, even extractions, in and of
itself, does not constitute dental trauma). There is no time
limitation for filing application for such treatment. The
Veteran does not contend, nor does the record indicate, that
he experienced any such dental trauma in service. Therefore,
he is not eligible for Class II(a) treatment.
One-time dental treatment (Class II) may be available to
Veterans. According to the provisions of 38 C.F.R. § 3.381,
however, outpatient dental treatment is limited to treatable
or replaceable missing teeth for those Veterans having a
service-connected noncompensable dental condition or
disability shown to have been in existence at time of
discharge or release from active service, which took place
after September 30, 1981, may be authorized any treatment
indicated as reasonably necessary for the one-time correction
of the service-connected noncompensable condition, but only
if: (A) They served on active duty during the Persian Gulf
War and were discharged or released, under conditions other
than dishonorable, from a period of active military, naval,
or air service of not less than 90 days, or they were
discharged or released under conditions other than
dishonorable, from any other period of active military,
naval, or air service of not less than 180 days; (B)
Application for treatment is made within 180 days after such
discharge or release; (C) The certificate of discharge or
release does not bear a certification that the Veteran was
provided, within the 90-day period immediately before such
discharge or release, a complete dental examination
(including dental X-rays) and all appropriate dental
treatment indicated by the examination to be needed, and (D)
a VA dental examination is completed within six months after
discharge or release, unless delayed through no fault of the
Veteran. 38 C.F.R. § 17.161(b)(2).
Recently, the time limit for application for treatment has
been extended to 180 days. The final rule implementing this
change was published on October 8, 2008. 73 Fed. Reg. 58875-
76 (Aug. 29, 2001) (to be codified at 38 C.F.R. §
17.161(b)(1)). As this is more favorable to the Veteran, this
time limit will be applied. VAOPGCPREC 3-2000 (April 2003).
Here, the Veteran meets all of the criteria except that he
did not file an application for treatment within 180 after
his June 1993 service separation. Nonetheless, a Veteran at
the time of discharge must be provided with a written
explanation as to the criteria for determining eligibility
for VA outpatient treatment for service-connected dental
conditions or disabilities. A signed acknowledgement must be
included in the service records showing that written notice
of this explanation was provided. If a Veteran refuses to
sign such statement, a certification from an officer
designated for such purpose by the Secretary concerned that
the member was provided such explanation. 38 U.S.C.A. §
1712(a)(2); 38 C.F.R. § 17.161(b)(1)(i)(B); Mays v. Brown, 5
Vet. App. 302, 306 (1993).
Review of the Veteran's record does not reveal that he was
given a written explanation of the eligibility requirements
for VA outpatient dental treatment. Nor is there a
certification showing that he refused to sign such a
statement. His DD 214 shows that he was not provided with a
complete dental examination and all appropriate dental
services and treatment within 90 days prior to separation.
As such, although he is not shown to have applied for dental
treatment within 180 days of his discharge from service, he
is found eligible for VA dental treatment on a one-time
completion basis. Accordingly, and resolving all reasonable
doubt in the Veteran's favor (see 38 U.S.C.A. § 5107(b) and
38 C.F.R. § 3.102), the Board finds that eligibility for VA
outpatient dental (Class II(a)) treatment, on a one-time
completion basis, is established. See 38 C.F.R. §
17.161(b)(1).
Although a Veteran is also entitled to VA outpatient dental
treatment if he qualifies under one of the other categories
outlined in 38 U.S.C.A. § 1712 and 38 C.F.R. § 17.161, the
Veteran does not meet any of the remaining criteria. Class
II(b) and Class II(c) treatment require that the claimant be
a prisoner of war, a status not accruing to the Veteran. See
38 C.F.R. § 17.161(d), (e). Class IIR (Retroactive)
eligibility requires that a Veteran who had made prior
application for VA dental treatment within one year of April
5, 1983, received dental treatment from the VA for
noncompensable dental conditions, was denied replacement of
missing teeth which were lost during service, and that
existing VA records reflect the prior denial of the dental
claim. See 38 C.F.R. § 17.161(f). The Veteran has not sought
VA dental treatment prior to the current claim. There is no
evidence demonstrating that the Veteran has a dental
condition that impairs or aggravates a service-connected
disability (Class III). See 38 C.F.R. § 17.161(g). The
Veteran's service-connected disabilities are not rated as 100
percent disabling by schedular evaluation or due to
individual unemployability (Class IV), nor is he a Chapter 31
vocational rehabilitation trainee (Class V). See 38 C.F.R. §
17.161(h), (i). He is also not receiving, or is scheduled to
receive, VA care and treatment under 38 U.S.C.A. Chapter 17
(Class VI). See 38 C.F.R. § 17.161(j). Accordingly,
outpatient dental treatment is not warranted on a basis other
than Class II(a) treatment, on a one-time completion basis.
B. Entitlement to a Higher Initial Evaluation
The Veteran is seeking higher initial evaluations for the
service-connected bilateral hearing loss and skin rash with
papules.
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities, which assigns ratings
based on average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155;
38 C.F.R. 4.1, et. al. Where there is a question as to which
of two evaluations shall be applied, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7. After careful consideration of the evidence, any
reasonable doubt remaining is resolved in favor of the
Veteran. 38 C.F.R. § 4.3.
Where entitlement to compensation already has been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994). In Fenderson v. West, 12 Vet App 119, 125-26 (1999),
however, the U.S. Court of Appeals for Veterans Claims
(Court) distinguished appeals involving a Veteran's
disagreement with the initial rating assigned at the time a
disability is service-connected. Accordingly, where the
question for consideration is the propriety of the initial
rating assigned, evaluation of the medical evidence since the
effective date of the grant of service connection, and
consideration of the appropriateness of "staged rating"
(i.e., assignment of different ratings for distinct periods
of time, based on the facts found) is required. See id. at
126-27. Moreover, the Board notes, the Court recently held
that in claims for increased rating VA must consider that a
claimant may experience multiple distinct degrees of
disability, resulting in different levels of compensation,
from the time the increased rating claim is filed to the time
a final decision is made. Hart v. Mansfield, 21 Vet. App.
505 (2007).
Given the nature of present claims for a higher initial
evaluation, the Board has considered all evidence of severity
since the effective date for the award of service connection
in April 2003. The Board's adjudication of this claim
accordingly satisfies the requirements of Hart.
Bilateral Hearing Loss
The Veteran's service-connected bilateral hearing loss is
currently evaluated as noncompensable.
Hearing loss is rated under the criteria of 38 C.F.R. § 4.85,
Diagnostic Code 6100. Evaluations of defective hearing are
derived by a mechanical application of the rating schedule to
the numeric designations assigned after audiometric
evaluations are rendered. See Lendenmann v. Principi, 3 Vet.
App. 345 (1993). Hearing impairment is determined by
averaging the hearing impairment at each of the four
designated frequencies (1000, 2000, 3000, and 4000 Hertz).
38 C.F.R. § 4.85. This results in a Puretone Threshold
Average for each ear. Id. The Puretone Threshold Average is
charted, in conjunction with the Speech Discrimination
Percentage for that ear, in Table VI of 38 C.F.R. § 4.85.
Id. This results in a score, expressed as a Roman numeral,
for each ear. Id. The Roman numeral scores for both ears
are then charted in Table VII of 38 C.F.R. § 4.85, and the
intersection of the scores provides the percentage of
disability. Id.
Effective June 10, 1999, exceptional patterns of hearing
impairment, which cannot always be accurately assessed under
the standards of 38 C.F.R. § 4.85, may be evaluated under the
provisions of 38 C.F.R. § 4.86. These provisions apply when
either the puretone threshold at each of the four specified
frequencies is 55 decibels or more, 38 C.F.R. § 4.86(a), or
when the puretone threshold is 30 decibels or less at 1000
Hertz and 70 decibels or more at 2000 Hertz, 38 C.F.R.
§ 4.86(b). If either of these provisions applies, each ear
is evaluated separately. See 38 C.F.R. § 4.86. The Roman
numeral designation for the ear with an exceptional pattern
of hearing impairment is derived from Table VI or VIa,
whichever results in the higher numeral. When 38 C.F.R.
§ 4.86(b) is applicable, the assigned numeral is elevated to
the next higher Roman numeral. See id.
Table VIa will also be applied when an examiner certifies
that the use of the speech discrimination test is not
appropriate because of language difficulties, inconsistent
speech discrimination scores, etc. See 38 C.F.R. § 4.85(c).
The pertinent evidence in the present case first includes an
August 2004 VA audiological consultation. Audiometry
results, however, are not provided, so the evaluation is not
acceptable for rating purposes. In any event, the VA
audiologist noted that audiometer readings showed mild
conductive hearing loss. Speech recognition scores were 100
percent right ear and 96 percent left ear.
In his April 2003 claim, the Veteran wrote that he could not
hear in a normal manner.
More recently, the Veteran underwent an audiological
examination in January 2010. During the examination, the
Veteran complained of worse left ear hearing, plus a feeling
of pressure on the left side. The examiner also indicated
that the Veteran had dizziness and lightheadedness related to
his hearing loss. The VA examiner then reported audiometry
results as follows:
HERTZ
500
1000
2000
3000
4000
AVG.
RIGHT
N/A
25
25
25
45
30
LEFT
N/A
20
20
25
35
25
Speech recognition scores were 96 percent right ear and 92
percent left ear. The VA audiologist indicated that
reliability of testing was only fair, especially in the left
ear. Even after reinstruction and retesting, puretone
thresholds at 4000 Hz in both ears were inconsistent with
otoacoustic emissions. The audiologist diagnosed non-
disabling hearing loss bilaterally with significant effects
on the Veteran's occupational functioning due to difficulty
with soft voices, especially on the left. The VA examiner
then indicated that the service-connected hearing loss should
have no effect on the Veteran's ability to obtain or maintain
gainful employment.
Charting the January 2010 VA examination results in Table VI
of 38 CFR 4.85, results in assignment of a Level I is for the
left ear and a Level I for the right ear. A noncompensable
evaluation is derived from Table VII of 38 CFR 4.85 by
intersecting row I, the better ear, with column I, the poorer
ear.
VA hearing examination worksheets were revised while this
appeal was pending to include the effect of the Veteran's
hearing loss disability on occupational functioning and daily
activities. See Revised Disability Examination Worksheets,
Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr.
24, 2007); see also 38 C.F.R. § 4.10 (2008); Martinak v.
Nicholson, 21 Vet. App. 447, 455-56 (2007). Here, the
examiner addressed the current severity of the Veteran's
bilateral hearing loss and the impact of his hearing loss on
his daily functioning. Martinak v. Nicholson, 21 Vet. App.
at 455-56.
In summary, the mechanical application of the rating schedule
to the numeric designations assigned after audiometric
evaluations shows that a compensable evaluation is not
warranted for the service-connected bilateral hearing loss.
"Staged ratings" are not warranted because the schedular
criteria for a higher rating were not met at any time during
the period under appellate review. See Hart, 21 Vet. App. at
505; Fenderson, 12 Vet. App. at 126-27. For these reasons,
the Veteran's claim for an initial compensable evaluation for
the service-connected bilateral hearing loss must be denied.
Skin Rash with Papules
The Veteran's service-connected skin rash with papules is
rated as noncompensable from April 29, 2003, and 10 percent
disabling from November 10, 2009.
The disability is rated by analogy under the provisions of
38 U.S.C.A. § 4.118, Diagnostic Code 7806 (dermatitis or
eczema). The rating criteria are as follows:
A compensable (zero) percent evaluation is assigned in cases
of less than five percent of the entire body or less than
five percent of exposed areas affected, and no more than
topical therapy required during the past 12-month period. A
10 percent evaluation is assigned for in cases of at least
five percent, but less than 20 percent of the entire body, or
at least five percent, but less than 20 percent, of exposed
areas affected; or intermittent systemic therapy such as
corticosteroids or other immunosuppressive drugs required for
a total duration of less than six weeks during the past 12-
month period. A 30 percent evaluation is assigned in cases
of 20 to 40 percent of the entire body or 20 to 40 percent of
exposed areas affected; or systemic therapy such as
corticosteroids or other immunosuppressive drugs required for
a total duration of six weeks or more, but not constantly,
during the past 12-month period. A 60 percent evaluation is
assigned in cases of more than 40 percent of the entire body
or more than 40 percent of exposed areas affected; or
constant or near-constant systemic therapy such as
corticosteroids or other immunosuppressive drugs required
during the past 12-month period.
Alternatively, eczema may be evaluated as disfigurement of
the head, face, or neck (Diagnostic Code 7800) or (Diagnostic
Codes 7801-7805), depending upon the predominant disability.
38 C.F.R. § 4.118, Diagnostic Code 7806.
Here, the pertinent evidence during the initial rating period
prior to November 10, 2009, includes a private treatment note
from April 2003, which shows that the Veteran had very fine
white, almost pylars keratitis-like lesions, on the arms. He
was prescribed hydrocortisone valerate cream for treatment.
A VA treatment note from April 2004 shows that the Veteran
complained of a rash on his arms and back.
In October 2004, the Veteran underwent a VA examination.
With regard to the skin, the VA examiner found scattered,
white, fine papules, 1 mm, on the shoulder and bilateral
upper arms. There were also a few acne sores on the back,
neck, and shoulder, but otherwise normal skin. The Veteran's
head and face showed no scars, lesions, or deformities.
Next, a January 2008 private treatment note shows that the
Veteran had an abscess drained from his back.
Then, according to a June 2009 private treatment note, the
Veteran complained of a rash, which he had periodically,
including on the lower legs and back. Physical examination
showed erythematous tiny papules in a sporadic pattern over
the lower extremities (including the feet). The mid-
posterior thorax showed sebaceous cysts, not inflamed, and a
scar from the previous incision and drainage ("I&D"). The
upper back showed erythematous pustules/papules. The
assessment was rash, sebaceous cysts, and other acne.
On November 10, 2009, the Veteran underwent a VA examination.
During the clinical interview, the Veteran related his
complaints of an eruption of scattered, slightly itchy white
spots on both arms, anterior and posterior aspects. He also
had blisters on his fingertips and tips of his toes,
involving the finger and toe web spaces, in between these
spaces, and on the soles of his feet. He further described a
rash with raised red bumps on both lower extremities; itchy
red bumps in the groin area, plus itchy red bumps scattered
on in the stomach and back. He had clustered brown,
hyperpigmented macules on his forehead beginning in 2007.
The Veteran indicated that these different types of rashes
are recurrent with the last episode occurring 4 months prior.
Breakouts occurred 9 to 10 times per year and last
approximately 1 to 1 1/2 weeks. He used a cream to prevent
itching. He did not use oral medication, including oral
steroid or immunosuppressive type medication.
Upon review of the claims file, the VA examiner observed that
the Veteran had been treated for skin eruption consisting of
scattered red papules over the lower extremities and trunk
with hydrocortisone, triamcinolone, and loprox creams. On
physical examination, the VA examiner found no exfoliation,
exudation, disfigurement, scarring, ulceration, and no
crusting. The groin area was clear of rash. The anterior
portion of the right lower leg had 2 white flat macular areas
and a small area of red clustered papules. The anterior
portion of the left lower extremity had a cluster of red
papules. The left inner thigh area had a small cluster of
red papules. The Veteran's back had scattered flat red
macular lesions. The front truck had approximately 4 red
papules in discrete areas. The bilateral calf area had
scattered, approximately 2 to 4, white macules. The right
upper shoulder had 3 scattered red papules. The upper left
shoulder/back had a poikilodermatous-type texture with white
area and some erythema. The bilateral hands and feet were
clear with no lesions or blisters in the web spaces. The
right and left forearms had a few scattered white macules.
The upper arms were relatively spared of an eruption.
Based on the examination results, the VA examiner diagnosed
keratosis pilaris, which the Veteran reported as recurrent
skin rashes involving various locations of the body,
including his legs, arms, trunk and back, but with zero
percent of exposed area and ten percent of the entire body
affected on examination. The VA examiner also diagnosed
dermatitis, which the Veteran reported as a chronic rash on
the forehead. This involved five percent of exposed areas
and less than one percent of the entire body. He also had
dyshidrotic dermatitis involving the webspaces of both hands
and feet, which involved zero percent of exposed area or
entire body on physical examination. The VA examiner
indicated that there were no systemic or nervous
manifestations.
In light of this evidence the Board finds that the service-
connected disability picture more nearly resembles the
criteria for the assignment of a 10 percent evaluation
throughout the entire appellate period. In particular, the
VA examiner in November 2009 indicated that the service-
connected skin rash with papules affects ten percent of the
entire body. The VA examiner described symptoms consistent
with symptoms previously described in April 2003, October
2004, and June 2009. Although the prior examiners did not
specify the percent of body surface area affected by the
service-connected skin rash with papules, the Board finds
that their descriptions are otherwise consistent with the
November 2009 VA examiner's assessment. Accordingly, the
service-connected disability picture more nearly approximates
the symptomatology of a 10 percent evaluation throughout the
appellate period.
An evaluation higher than 10 percent, on the other hand, is
not assignable at any point during the period of appellate
review. The November 2009 VA examiner found less than 20
percent of the entire body and less than 20 percent of
exposed areas affected. The examiner also made clear that
the Veteran did not require systemic therapy such as
corticosteroids or other immunosuppressive drugs.
To the extent the disability may also be rated under
Diagnostic Codes 7800 though 7805, an evaluation higher than
10 percent is not warranted. In particular, Diagnostic Code
7800 applies to disfigurement of the head, face, or neck.
The evidence shows, however, the Veteran's predominant
disability involves the unexposed areas of his body.
Accordingly, a higher evaluation is not warranted under
Diagnostic Doe 7800. The Veteran's skin rash with papules is
also not shown to be deep or cause limited motion.
Accordingly, a higher evaluation is not assignable under
Diagnostic Code 7801 or 7805. To the contrary, the November
2009 VA examiner found that there was no exfoliation,
exudation, disfigurement, scarring, ulceration, or crusting.
Finally, a higher evaluation is not assignable under
Diagnostic Codes 7802 through 7804, because a 10 percent
evaluation is the highest available rating assignable under
these Diagnostic Codes.
In conclusion, the Board finds that an initial 10 percent
evaluation, but not higher, is warranted for the service-
connected skin rash with papules. "Staged ratings" are not
warranted because the schedular criteria for a rating higher
than 10 percent were not met at any time during the period
under appellate review. See Hart, 21 Vet. App. at 505;
Fenderson, 12 Vet. App. at 126-27.
Extraschedular consideration
The Board's findings above are based on schedular evaluation.
To afford justice in exceptional situations, an
extraschedular rating may also be provided. 38 C.F.R. §
3.321(b). Here, however, referral for extraschedular
consideration is not warranted. First, the applicable rating
criteria reasonably describe the Veteran's disability level
and symptomatology. Furthermore, the evidence does not show
marked interference with employment in excess of that
contemplated by the rating schedule, frequent periods of
hospitalization, or other evidence that would render
impractical the application of the regular schedular
standards. Therefore, the Board is not required to remand
the Veteran's claim for consideration of extraschedular
ratings under 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22
Vet. App. 111, 115 (2008)
ORDER
Service connection for chronic fatigue syndrome is denied.
Service connection for tinea pedis is granted.
Service connection for atypical chest pain is granted.
Service connection for a respiratory disorder to include
bronchitis and pharyngitis is denied.
Service connection for headaches is denied.
Service connection for sensitivity to bright light is denied.
Service connection for dental disorder solely for the purpose
of obtaining VA outpatient dental treatment on a one-time
completion basis is granted.
An initial compensable evaluation for the service-connected
bilateral hearing loss is denied.
An initial 10 percent evaluation, but not higher for the
service-connected skin rash with papules is granted, subject
to the regulations governing the payment of VA monetary
benefits.
An increased evaluation in excess of 10 percent for the
service-connected skin rash with papules is denied.
______________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs